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Taking property by deceit (this is not a Treaty article)

I’ve been around the law and politics for some time. Legislation is moulded by politics. Some politicians insist on obscure language to disguise the real effect of law, to delay opponents realising how far it goes. I understand that. We live in a democracy. Democracies need politicians who act to minimise the number who want to vote them out. So a law-writing  hand may get  an irresistible urge to obfuscate .

Until recently we had some protection from Parliamentary Counsel. There was a convention supporting some gate-keeper role in rejecting such deceit, but it seems that semi-constitutional filter has gone.

There are less cynical and offensive ways to deceive the public, but deceptively written law is becoming “normal”. Few lawyers in Parliament have the background to detect it, which may have something to do with selections for identity group ‘reflection’ instead of established merit.

The increase may also be because the deceitful hand is not necessarily that of  the politician.  Officials with an agenda their elected masters won’t like have the time to hide their obfuscations deep in dense language. Politicians may not work out what they are voting for until too late.

A Bill well through the Parliamentary process ‘updating’ the Historic Places Trust legislation is a classic example. The 1993 Act over-rode property rights, but only for the unfortunates who happen to own really old places, The replacement Bill turns that limited exception into general contempt for the property rights. Now they are to be confiscated from pretty much anyone with property that “Heritage New Zealand Pouhere Taonga” finds appealing. The Board can declare a place to be category 1 or 2 protected (economically seized for practical purposes) if they are satisfied of its “significance or value in relation to” any one or more of its:

  • ‘Technical accomplishment, value, or design’;
  • ‘Symbolic or commemorative value’;
  • ‘Community association’;
  • ‘Public esteem’;
  • ‘Potential for public education’;
  • ‘Importance to tangata whenua’;
  • ‘Extent to which it forms part of a wider …cultural area’.

Observe that none of those need have anything to do with history.

The ‘Heritage’ czars will be able to freeze your place  built last year, if they think the architecture (‘design’) is great. If some idiot has started calling your property or street iconic, look out, because it will show it has ‘public esteem’. If it was once used for something for which we’ve started to pretend reverence, like an RSA hall, or where Lorde was born, get ready to lose your property rights. A public clamour to turn it into a shrine of symbolic value, or of community association would satisfy Board.

None of this is accidental. At a conference 18 months ago I heard two Auckland architects assuring the audience that changes were coming to make sure that no one could disrespect their favourite works in the future, however new, because they could be protected as taonga. The audience murmured agreement that it was outrageous that really old taonga could be protected from its owners, but not new. Note to developers – never build anything  distinctive from now on, shun imaginative architects, don’t buy ‘landmark’ assets. Boring is good.

So how has this extension of powers drawn no public attention?

The word “historic” is still sprinkled liberally throughout the Bill. And the criteria above are in a list which retains the earlier concepts, including five out of eleven which still require connection with something old, like:

  • Association with events, persons or ideas of importance in NZ history;
  • Potential to provide knowledge of NZ history;
  • Identifying historic.

The removal of any necessary connection with history is achieved by sly new definitions in the fine print. Though the word historic is still used, it is now defined to cover also “cultural heritage” (not defined). The former requirement for age has largely gone, and it does not apply to the ‘cultural’ part.

Perhaps this does not matter too much you might think, because at least the Crown will pay owners for effectively nationalising their savings or land. That has always been the principle under the Public Works Act. And this is a bill from the National government which surely respects property rights. Indeed it is paying out hundreds of millions to Maori for previous generations’ disrespect.  Aren’t there some basic constitutional assumptions about not taking people’s property for public purposes without compensation?

Aha – the cunning drafters were up and at work well before you, and apparently before your representatives in Parliament. Sub-clauses (2) and (3) of clause 12 say:

“Nothing in this Act requires Heritage New Zealand Pouhere Taonga to negotiate or agree with any person to acquire any land or interest in land.

No interest in land may be regarded as having been taken or injuriously affected and no compensation is payable by reason only of any provision of this Act”

Yet even ACT and United Future (which a few years ago introduced a member’s bill to require respect for property rights in the NZ Bill of Rights Act) have been voting for this Bill. And so has the Maori Party which came into being because property rights guaranteed under article 2 of the Treaty were trashed.

So there we have it – a perfect example of deceptive drafting working perfectly, even on politicians who should know all about deceit, and be alive to being tricked into voting against principles they hold dear.

You might think that someone might have noticed what was happening, because the Minister has boasted of the extra protection inserted for property owners.  HNZPT must now “recognise the interests of an owner as far as those interest are known”. What does that mean? Next to nothing. There is no obligation even to find out what the owner's interests might be. But HNZPT need not worry. That provision appears immediately before the provisions saying no owner agreement is required and no compensation is payable. In my opinion a court will be obliged to find that 'recognition'  has no practical value. Maybe it will be  a plaque on the building  saying‘with thanks to chump [insert name of owner]”.

I would have ended this post here, thinking I’d uncovered one of the finest examples of legislation as deceit..

But it is about to be topped by a doozy. I’ll explain that in a separate post in due course.

Before you go, however, there is often a sign when a Bill is deliberately unclear, like a nervous tic in a poor liar. Such Bills often include 'New Zealand' in the title, always gratuitously.Is that why the Historic Places Trust Act 1993 is to become the Heritage New Zealand Pouhere Taonga Act 2014?  Who else’s ‘Heritage’ or ‘Pouhere Taonga’ does Parliament think they might claim power to expropriate?

The totally empty insertion of 'New Zealand' reminds me of various sententious lectures we practicing lawyers have had from lawyer MPs,  about plain English and simple comprehensible language. Compared with the crowd now elected to muddle our statutes, the fine print artists of website terms and conditions and log-in pages are amateurs.

Stephen Franks is principal of Wellington commercial and public law firm Franks and Ogilvie.

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Comments and questions
10

There must be a lot of incompetent people in parliament for this sort of thing to be allowed.
Is anyone going to be accountable for this?

Good work Stephen in exposing the mischief of special interests using political means to shape the artificial law that is legislation in their favour. And I'm sure that a sizable minority, perhaps even a majority will recognise the mischief and oppose it.

I must sadly suggest that such exposure and such minority or majority opposition to it is unfortunately futile. Especially when the source of the mischief isn't comprehended and communicated in your writings, yet.

The source of the mischief is not special interests, it is not those with weak wills, confused minds, lack of vigilance, or even lack of care and concern in the halls of power. The ultimate source is the concept that society should invest a group of people with the exclusive power of coercion and to ask them nicely to pursue the common good with such ineffective checks and balances on this unnecessary concentration of power in society as democracy, and of course the favourite support for enforced compliance with coercive impositions of the state: the myth of the rule of law.

Deceit is inherent in myths such as the rule of law. Your finding of it should not be a cause for surprise. For example, you express some dismay at the expropriation of private property rights without compensation, and without the need for consent or negotiation. I wholeheartedly agree with your concern, and wish you would express the same concern about this practice at the fundamental level of expropriation generally, including its most institutionalised and systematic form: taxation. If social order and justice require a monopoly agency of coercion, a centralised totalisator machine dispensing justice, rewards and punishments according to a central plan of what constitutes justice, a fair society, the common good or whatever, then of course the use of such an instrument of power to collect funds to cover its costs by force is seen as a necessary evil. In order to banish this evil we need to take off the blinkers and see social order and social justice arising endogenously from society, and the threat to social order that is the state.

For example, consider your concern with deceit. When enacting legislation, the use of deceit is difficult to combat for the reasons you detail. Whatever wealth, power, prestige or resources are being transferred or manipulated by the legislative measure are sure to be covered by appeals to moral principles, social justice, a fair go, addressing important social problems, maximising wealth or whatever is the socially accepted values or accepted political discourse. And after it is enacted and becomes law, the myth of the rule of law kicks in to stop people objecting to its effects or means on the grounds of the deceit that went into passing it; you have to obey it because it is the law, and the alternative to law from political means is portrayed as chaos and disorder, or to subjection to the whim of a dictator.

The contrast in the case of non-legislative law and of the non-political means of social organisation are quite different regarding the problem of deceit. Deceit of course is a wrong recognised under our customary law, known today as the common law, and the remedy of money damages is available on actions passing a balance of probabilities standard of proof. In any social dealings, the parties have concern to understand what the terms being offered or accepted are, and what they are giving to the other person to get whatever it is that they want. Also they seek to determine whether they should trust the promises made by the person they are dealing with. This means they seek clarity and confidence as to what is going on and spend resources on communication and trust building and so on to manage these issues. This reduces the opportunity for deceit to enter into dealings between people. And should it enter, they may have a remedy at law. Those who act deceitfully risk impairing their reputations, and their ability to deal with others on good terms in future. This helps create a culture of honesty and fair-dealing. The way people structure their dealings and how they produce goods and services etc. is shaped, in part, by the need to avoid suffering losses that can result from deceit. For example, they spend resources on organisational governance measures such as separation of duties and accounting practices. This means that the economy and society is made more structurally and culturally resistant to deceit and its harms. Isn't this a good pointer to where we should discover the institutions for a civilised society with effective controls on deceit, theft and other forms of wrongdoing?

Correct Mr Franks, now please help Mr Jamie Whyte and ACT by standing in an electorate for the next election. Cheers.

From many points of view so-called heritage buildings are a major problem. Many of them are serious earthquake risks and some of them cannot be sufficiently strengthened at any price. Others can be strengthened by the cost can never be recovered. So if you own one of these, it immediately becomes worthless.

You cannot pull it down and you cannot rent it out. If the Council then takes it over, discovers that it cannot be repaired and pulls it down and sells the land, then the original owner can, quite legitimately, claim that he has been robbed.

Declaring a building "heritage" presumably adds to the public good so the public should be prepared to contribute.

I suggest that when any building is about to be declared heritage, valuations should be requested from independent valuers for the building with and without a heritage designation. If they regard the building is sufficiently valuable, then the council pays the difference in value to the owner.

It seems to me to be completely fair. Given that the Auckland unitary plan gives pre-1944 buildings a heritage designation, it is something that needs to be dealt with very quickly and effectively.

Brilliant article thanks Stephen. You would be staggered at what obfuscation the officials at MBIE have been able to get away with.

which political party would be able to stop this nonsense? Thanks for a good article.

None which is why we need Binding Citizens Referenda with the power of recall so such legislation can be countermanded and those responsible for it removed from office and that should include the parliamentary draughtsmen.

Unfortunately it is not true that only really old places were subject to HPT under the previous legislation. By designating a whole area as a Historic Precinct many properties were made subject to heritage constraints despite being no older than I am, or even brand new.

Mr Leylands view would have interesting ramifications if demolition took place of the many low rise Heritage and quake impaired Buildings in prime locations sitting on High rise zoned land and hopefully he isnt suggesting the overage windfall value gets refunded to the Council because in some instances it would be equivalent to high lotto winning amounts and even more.

Mr Franks speaks a real truth.
When will anyone bring these crazies that seem to thrive so well in the fettid isles of NZ. Investing now over the ditch I'm happy to let my old so called heritage junk rot. They were cheap and nasty when built and only the borer likes the places anymore as even students gave up on them 30 years ago.